Francois Makorani Ddaiddo v Bank of India [2021] KEELRC 1252 (KLR)
The bottom line
#Kenya's Employment Court dismissed both a banker's retirement benefits claim and the bank's counterclaim because both were filed too late under limitation law.
What this practically means
#Executive summary
#Key legal issues
#When and how the contract of service ended
The contract ended on 03.08.1998 by reason of the claimant's participation in the nationwide strike, not under VERS
The claimant applied for VERS on 27.07.1998 but before a reply, he participated in the 1998 national bank workers strike. He wrote seeking to be pardoned and to be considered under VERS, and admitted in cross-examination that he did not meet the VERS preconditions of age and length of service set on 16.10.1996. The strike was the subject of Industrial Court Cause No. 77 of 1999 decided by Cockar J on 17.03.2001.
Limitation
Both the suit and the counterclaim were time barred
The suit was filed in the High Court in 2005 only to object to the exercise of statutory power of sale; employment-based claims and prayers were introduced by amendments in 2012 and 2015. Under section 90 of the Employment Act, 2007 and section 4 of the Limitation of Actions Act, the three- and six-year limitation periods had lapsed whether the cause accrued in 1998 (benefits due) or 2005 (notice of sale). The Court of Appeal authorities relied on held section 90 limitation mandatory.
Res judicata and jurisdiction over loan/charge issues
Conclusively determined by a prior ruling of Rika J delivered on 24.03.2017
The respondent's preliminary objection that the suit was res judicata given Industrial Court Cause No. 77 of 1999, and that the Court lacked jurisdiction over loan obligations arising from the charges, had already been conclusively determined by this Court's earlier ruling and the Court did not reopen it.
Legal principles established
#- The limitation periods in section 90 of the Employment Act and section 4 of the Limitation of Actions Act are mandatory and apply to claims for employment benefits
- Where the suit and the counterclaim are both time barred, both are liable to dismissal with no order of costs in favour of either party
Court orders
#- 1.The claimant's suit is dismissed as time barred
- 2.The respondent's counterclaim is dismissed as time barred
- 3.Each party to bear own costs of the entire proceedings
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 90) over disputes arising from contract of service
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francois Makorani Ddaiddo v Bank of India [2021] KEELRC 1252 (KLR)", Case Analysis (2021). ELRC Cause (Mombasa), further amended memorandum of claim filed 19.02.2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1252/eng@2021-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.